“Collegiality” in Comparative Context

Sarah Harding

SUMMARY: 7.1. A spectrum of collegiality. - 7.2. Dialogue and legal development. - 7.3. Institutional legitimacy. - 7.4. Conclusion.

Professor Dilletta Tega’s paper reviews the various arguments for and against “collegial” decision-making on the Italian Constitutional Court. In this context “collegial” decision-making is defined as decisions arrived at in secrecy, published as one single opinion with no concurrences or dissents. The author of the opinion, typically the rapporteur, is not anonymous. While separate opinions are not permitted, there is no requirement that decisions actually be unanimous.1 Since voting is private and secret there is no indication of the internal tally aside from knowing that a majority of judges were able to accept the written opinion. Professor Tega’s primary focus is the richness of the debate regarding this unique element of Italian constitutional decisionmaking. The “collegiality” requirement has been a focus of robust debate since the creation of the Court in the 1950s and has continued to play out within the judiciary, the legislature, and among constitutional scholars.[1]

While the debate is no doubt complex, one comes away from Professor Tega’s paper with two straightforward conclusions. First, the arguments for or against a “collegiality” requirement have been relatively static over time. As Professor Tega notes, constitutional scholars and judges were actively arguing for the introduction of separate opinions within the first ten years of the Italian Constitutional Court’s establishment. Proponents of the change argued that separate opinions would lead to deeper analysis, more consistent majority decisions and a “general enrichment” of constitutional law. On the other hand the most consistent arguments for continued “collegiality” were and continue to be concerns about the reputation of the

Court, in particular judicial independence, and the benefits of reaching a consensus.

The second clear conclusion is the consistent alignment of the arguments. On the one hand the arguments for “collegiality” focus on the reputation of the Court as a whole. Both the secretive process of arriving at a single, collective decision and publishing that decision as a reflection of the position of the Court as a whole is justified as necessary to preserve the legitimacy of the Court as an impartial, non-partisan institution. This argument, as Professor Kelemen notes in her study of dissenting opinions, is based on the “external aspect of judicial independence”.[2] The publication of a single Court decision, while inhibiting internal judicial independence, arguably limits opportunities for external political pressure. Separate opinions risk exposing judges to external political influence, thus undermining “the moral strength of constitutional judgments” and the reputation of the Court. Whatever one might think of these arguments, single majority decisions at the very least make it difficult to consistently critique the politics of the Court or of any one judge.

There are some references in Professor Tega’s paper to the importance of reaching consensus as an argument in favor of “collegiality”. The idea that decisions are reached not by vote but by deliberation - and through that deliberation, some sort of consensus - is particularly prominent in the commentary of Justice Gustavo Zagrebelsky. But in the history of the debate over “collegiality” that Professor Tega details, the value of consensus seems secondary. Concerns about the legitimacy of the Court and its justices appear to be the primary focus of arguments in favor of retaining the “principle of collegiality”.

On the other hand, most of the arguments against “collegiality” or for permitting separate opinions tend to focus on the development of constitutional law and legal principles. The arguments articulated in the 1960s, particularly by Justice Costantino Mortati, are similar to arguments made more recently in favor of separate opinions: “public awareness of constitutional law would be better served by the clear and precise expression of different and divergent rational arguments”. As Professor Tega notes, both discursive and deliberative theories of law and legal development support separate and independent decisions as a means to more fully encourage and enhance debates about constitutional law.

Finally, by way of summary, Professor Tega herself seems to prefer a shift towards permitting separate opinions. Following the traditional fault lines of the arguments for and against “collegiality”, she rejects concerns that permitting dissents would unduly affect the reputation of the Court, and argues that separate opinions would have a positive affect on legal development.

Professor Tega recognizes from the outset that "collegiality” on the Italian Constitutional Court is very much a contextual issue. Concerns about the legitimacy and reputation of the Court as a new legal institution were central at the moment of its creation, thus providing much support for the “principle of collegiality”. As Professor Tega notes, “It bears remembering that, at the outset, things were not easy for the Italian Constitutional Court: its establishment was a crucial novelty ...”. While the Court has cemented its reputation, indeed its performance outshines other branches of government, for some this provides more support for maintaining the status quo rather than moving to a different model. In short, while greater institutional maturity encourages some to argue for innovation, the strong reputation of the Court leads others to resist rocking an otherwise stable and secure boat. Furthermore, one cannot ignore the broader political chaos in Italy that obliges the Italian Constitutional Court to continue performing as an “island of reason”.

Given these important contextual limitations, it is with some hesitation that I wade into a broader discussion about “collegiality”. My background is firmly rooted in the common law tradition and the benefits of comparing Italian Constitutional Court rules and processes with those of common law supreme courts are, at best, limited. Even without factoring in the unique contextual aspects of the operation of the Court, the institutional and historical distinctions between European constitutional courts and common law supreme courts make comparison difficult. But with this difficulty firmly recognized, a general exploration of collegiality might at a minimum add some interesting color to the Italian debate and suggest some additional lines of analysis.

Two broad points might be gleaned from a review of the decisionmaking processes and constraints of other courts. First, there is a wide variety of decision-making options, from a system of completely independent seriatim, signed decisions to unanimous, per curiam or “by the court” unsigned decisions. Identifying the various models and determining when courts with options choose one approach over another might provide a richer set of ideas for discussing the “principle of collegiality”. The second

1

In the context of decision-making norms, some of these broader systemic distinctions are detailed in K. KELEMEN, Dissenting Opinions in Constitutional Courts, supra. note 2, and in her recent book, K. KELEMEN, Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective, Abingdon and New York, Routledge, 2018.

broad point is that the fault lines so clearly evident in Professor Tega’s summary of the pros and cons of “collegiality” might not be so clear in other contexts. It might not be the case that the strongest arguments for “collegiality” stem from broader concerns about the independence of judges and the general reputation of the court. Indeed, it might be the case that single decisions, whether unanimous or reflecting a mere majority of judicial votes, are important tools for legal development, without necessarily limiting the dialogic and discursive benefits presumptively connected with separate and dissenting opinions.

The following commentary will explore some of these broader considerations regarding “collegiality”. The next section will look briefly at a spectrum of decision-making options identifying examples of each approach. Following that the paper explores the arguments frequently utilized for opting for more or less collegial decisions. A very brief final part will look at other significant factors that influence perceptions about the legitimacy of a court, factors that Professor Tega briefly references.

There are two important things this commentary will not explore. First, Professor Tega’s paper addresses, albeit briefly, the various regulatory means available for instituting changes in the Italian Constitutional Court system of decision-making. I will not address this aspect of her paper.

Second, and much more broadly, there is a significant civil law/common law divide underlining much of this discussion. Most of the examples I introduce to fill out the collegiality discussion come from common law systems, in particular Canada and the United States. Needless to say, and as already noted, common law supreme courts are different from European constitutional courts in a wide and complex variety of ways. And, of course, common law supreme courts have historically embraced a tradition of separate - both concurring and dissenting - opinions. While this is true of all common law systems, the U.S. Supreme Court has become most infamous for the independent decision-making of each Justice leading to what some argue is a “cult of personality”.[3] This may indeed be one of the most interesting (not necessarily admirable) distinguishing features of the U.S. Supreme Court. But the purposes of this commentary are very limited and there is no space for taking account of broader systemic differences between the opinion writing of common law supreme courts and European constitutional courts. In any event, the vast majority of European constitutional courts already permit dissents and separate opinions, so it’s not clear that the common law/civil law divide in this area really matters as much as it might have previously.[4]

  • [1] Rules on the Constitution and the Functioning of the Constitutional Court Law 11 March 1953, n. 87 Art. 16. 2 See K. KELEMEN, Dissenting Opinions in Constitutional Courts, in 14 German L.J. 1345 (2013), 1369 (noting that the debate regarding the value of dissenting opinions has been particularly robust in Italy despite the lack of separate opinions).
  • [2] ’ K. KELEMEN, Dissenting Opinions in Constitutional Courts, supra, note 2, 1359.
  • [3] See, e.g. T. KOPAN, The Not So Reclusive Justices, Politico, 28 June 2013. Available at https:/Avww.politico.com/story/2013/06/supreme-court-justices-public-appearances-093583 last visited February 20, 2020. 2 One can hardly imagine anything like the current popularity of the documentary about Ruth Bader Ginsburg, happening anywhere outside of the United States. See Documentary ‘RBG’ Explores the Cult of Personality Around Ruth Bader Ginsburg, Radio Boston, 11 May 2018. Available at http://www.wbur.org/radioboston/2018/05/ll/rbg-docu mentary-film last visited February 20, 2020. Nor could one imagine anything like the intense public and political scrutiny over the confirmation hearings of Justice Brett Ka
  • [4] 2 &See F.B. CROSS, E.H. Tiller, Understanding Collegiality on the Court, in 10 Journal
 
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